Archive for the ‘Animal Law’ Category

Dog Case Heading to NY’s Top Court

TuckerTheDog-794626

This is my pooch, not the one in the collision in this case. But he makes for great blog artwork, no?

Earlier this year I wrote about a change under hoof in New York about animals causing injury. It has long been held that animal owners could only be liable for their animals’ acts if there was a “known vicious propensity,” that being some type of aggressive or threatening behavior. Hence the phrase, “every dog gets one free bite.”

Under those circumstances the owner was strictly liable for injuries, and there was no cause of action for negligence.

But the Court of Appeals cracked that door open earlier this year in Hastings v. Suave, holding in a case where a cow wandered through a poorly kept fence into a road where it was hit, that a cause of action could exist for negligence. This had nothing at all to do with the animal’s viciousness or not, but was solely based on the conduct of the owner.

The court also held that the matter of dogs, cats and other domestic pets was not before it, and would await another day.

That day now seems on the imminent horizon, as today the Appellate Division First Department ruled in Doerr v. Goldsmith, a case where two people on opposite sides of the road in Central Park were playing with a dog. One called the dog and the other released it. A bicyclist was riding in the road and couldn’t avoid impact.

As neatly summarized by the majority opinion:

Plaintiff testified that Goldsmith “was holding a dog in a manner that he was almost hugging the dog, so he had his arm around the chest and the neck of the dog” and that Smith was “slightly bending down and clapping her hands on her upper thighs.” Interpreting Smith’s actions to be a signal to the dog (which was hers) to come to her, plaintiff screamed out, “Watch your dog.” Plaintiff then saw the dog in the middle of the road, but was unable to avoid colliding with it and being propelled off the bicycle. Defendants do not materially dispute plaintiff’s recounting of the incident. Plaintiff seeks to recover against defendants on a theory of negligence. He does not claim that the dog’s actions were a result of any vicious propensities of which defendants may have been aware.

Everybody agrees, it ain’t the fault of the dog, even though courts and lawyers eschew words such as “ain’t.”

Given New York’s historic position on these cases, the defendants moved for summary judgment saying they were immune from anything they did because New York doesn’t have a negligence cause of action. The lower court disagreed and denied the motion. Defendants’ appealed and won, but then the Court of Appeals ruled in the cow case, and so this dog case was re-visted by the appellate court.

The First Department has now reversed itself and allowed the matter to stand, based on the logic in the cow case.

The dissent disagrees, writing that the Court of Appeals didn’t rule on this, having only ruled about farm animals and specifically left dog and pet cases for another day. Leave to appeal should be granted, the dissenters argued, and if the Court of Appeals wants to change the law that is its business.

And so, with a split decision, this case will no doubt go to the Court of Appeals.

My prediction: New York’s long-held policy of granting immunity to animal owners for their own negligence (as opposed to the animal’s viciousness) will fall by the wayside as illogical.  Immunity for negligence makes no sense at all, and is something that only a legislature can grant.

Lastly, a  hat tip to attorney Gregory Bagen for taking this case given the state of the law when incident occurred. He took on a matter that he knew, to be successful, would take years of appellate work and expense just to get to the jury. Well done.

Dog Bites Breast; Does Auto Insurance Cover It?

My dog; not the offending one. I needed art. He posed.

I know what you’re thinking; you think I put “bites breast” in the subject heading just to grab your attention. Nah, would I do that?

In fact, a dog inside of a car poked its snout through an open window and did bite the breast of a passing woman. And I presume it hurt quite a bit because there is money up on the table and an interesting judicial decision to go with it.

The issue came to a head this week in Allstate v. Reyes, in Dutchess County.  The car, with the dog inside and the window partly open, was parked in a “No Parking” zone when the woman was bitten.   The owner of the car, through his insurance company, ponied up the $25,000 policy that he had.

But the injuries — not listed in the decision — were obviously pretty substantial as the bitten woman then filed for arbitration against her own insurance company under it under-insured motorist claim provision. This is an endorsement on your policy that comes into play if the car that smashed into you (which is what usually happens) was carrying insufficient insurance for your injuries.

But this wasn’t a car accident, it was a dog bite. Did this injury occur arise out of the ownership, maintenance or use of the under-insured vehicle?

Want to take a guess? I’ll wait…

And the answer is, according to Dutchess County Justice James Pagones, yes. It did arise out of the use of the vehicle. Why? Because:

…the use of a vehicle to transport a household pet is now commonplace and the dog would not have been close enough to bite the respondent’s right breast without the use of [the owner's] vehicle to haul the dog and [the owner's] act of permitting the rear window to remain open. It is not necessary that the use of the vehicle be the proximate cause of the respondent’s injuries. Rather, this court finds that the use of the vehicle was a proximate cause of the respondent’s injuries. [emphasis in original]

Justice Pagones made a point of italicizing that the conduct did not have to be the proximate cause, it only needs to be a proximate cause. And that is because an injury might result from multiple caues.

One interesting twist on this case is this: If this was just a dog bite case, the concept of negligence wouldn’t exist. In New York, we have strict liability for animals with a known dangerous propensity. This is part of the infamous concept of “one free bite” — a concept that isn’t 100% accurate — that gives an owner notice of danger. So if there was no additional insurance through the under-insured endorsement, it would be impossible to obtain a judgment against the dog/car owner for simply the dog bite unless you could prove the dog had a nasty history.

Will you ever see this fact pattern again? Hell no. But I appreciate good judicial reasoning in an off-beat case.

The $30M Dog Bite (and Rosemarie Arnold)

Rosemarie ArnoldI was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000.

Yeah, I was mad. But not at the doctor and not at the dog. I was mad at the lawyer, Rosemarie Arnold, who belches on one of her websites that she is the “Queen of Torts.”

Really? The Queen? Well, let’s see about that, shall we?

Wouldn’t the “Queen of Torts” have the fundamental knowledge that, when starting a personal injury lawsuit in New York, you are not allowed to put in an ad damnum clause? That’s the part where you state an actual amount of money. The Legislature killed that idiotic provision back in 2003. As Walter Olson noted at the time on Overlawyered, the measure enjoyed “widespread support from among both defense interests … and the plaintiffs’ bar, which is perennially embarrassed by news items…”

That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time. Will the person need one surgery or five? Will the pain resolve itself in six months or not?

As a result of this problem, some lawyers would put crazy numbers in the complaint “just in case,” so that they would not be precluded later if the client’s health went downhill. At the same time, it was grossly unfair to the defendant, as newspapers loved to put this stupidity in headlines. This was particularly true in medical malpractice cases.

So the old law was, thankfully, changed by the Legislature.

Which brings us back to Rosemarie Arnold and her claim on behalf of the child that he suffered a $30M injury to his ear. There are only two reasons for Ms. Arnold to do this:

1.  The Queen of Torts is actually ignorant of the law; or

2.  Rosmarie Arnold willfully elected to ignore the law, in the hunt for headlines, thereby raising ethical issues about her willfully ignoring the law.

Neither of these scenarios is good for her, as one goes to the issue of ignorance and the other to the issue of ethics. Pick your poison.

Back in 2007, during my virgin year as a blogger, I first wrote about this issue. It’s time to expand on it, thanks to Rosmarie Arnold.

When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to  measure what is fair and reasonable under the circumstances and receive just compensation.

Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she  has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.

Perhaps the publicity she got from the suit was good for Ms. Arnold, but it was detrimental to the cause of civil justice. As is often the case, the bad conduct of a few people in a group taints the rest in the eyes of the public. There isn’t any group that wants to see its own misbehaving and damaging the reputation of the rest.

And on the cause of civil justice, since I’m on the topic, it’s worth noting that the self-proclaimed Queen of Torts isn’t even a member of the New York State Trial Lawyers Association, the premier bar association in the state that fights in Albany to protect the civil justice system from those who seek to damage it. Some Queen.

Frankly, I wouldn’t mind seeing this taken up by a judge or ethics committee.

I emailed Ms. Arnold using the form on her website two days ago, seeking comment, and no one got back to me.

A Cow Walks Into the Road…(Update x2)

I don’t deal too often with animal law at this joint, be we make an exception today. Why? Because an intermediate  appellate court has written that it doesn’t like the decision it was forced to render  and asked the state’s top court for a reversal. And when an appellate court asks to have itself reversed, I find that kinda interesting.

Facts: A cow wanders into the road. The cow causes an accident. Can the cow’s owner be successfully sued for negligently allowing said cow to wander?

Answer: No, there is no liability. Why? Because New York’s law of animals is such that there is no cause of action for negligence. The only actions that can successfully be brought are when an animal has a known vicious propensity, and if the animal has that, then there is strict liability regardless of whether the owner did anything wrong.

But a unanimous Appellate Division (Third Department) said that rule sucks in Hastings v. Suave. OK, maybe “sucks” isn’t exactly what the court wrote. But the vicious propensity rule generally comes up with household pets, notably dogs, and not farm animals, and the court doesn’t think it should apply in the farm animal setting. Acknowledging that they had no choice but to dismiss the case under current New York law, Justice Michael Kavanagh, wrote for the court that “we must note our discomfort with this rule of law as it applies to these facts — and with this result.”

Differentiating the case from those regarding household pets, Justice Kavanagh went on to say:

The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on farm property and,instead, allowed it to wander unattended onto the adjacent highway in the middle of the night, causing this accident.The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it. For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.

And that, my friends, is what is known as an invitation to the plaintiff to move for leave to appeal to the Court of Appeals. Given the unassailable logic of the court, I think the chances of a change in the law are pretty good.

Update: Leave to appeal to the Court of Appeals was granted June 6, 2012. Oral argument is scheduled for March 21, 2013.

Update #2: Reversed, May 2, 2013. The Court of Appeals breaks new ground in holding that negligence by an owner can be the basis of liability for farm animals, and says that it could apply the same rules to household pets in the future in an appropriate case:

To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463)—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126 Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.

 

 

First Pooch Barney Gets Defense Counsel

Right on the heels of Barney, the White House dog, biting biting Reuters reporter Jon Decker, we now find he may have the perfect defense lawyer.

Guide dog Skeeter Jones now has earned a law degree Juris Dogtor. I’ll try to reach out to Barney, carefully, for an updated interview on the ramifications for the species, and of Skeeter defending him.

Meanwhile, while one wag thinks you’d be barking up the wrong tree if you hired Skeeter, the paw firm of Barker and Meowsky has already made him an offer.

What will become of Skeeter and Barney? Stay tuned.

Welcome Economic Times of India Readers!

You know this blogging is a funny thing. You really can publish whatever you want and have it seen almost anywhere in the world.

So I’ve now been quoted in India. That’s right, India. I’ve traveled there, as you can see from the 20-year old picture at left. And had a great time in a wonderful country. But I can honestly tell you I never expected my little blog on personal injury law to pop up in one of their papers.

And the quote comes in an editorial, of all things, in the highly-regarded Economic Times of India. (I just made that highly-regarded thing up, I didn’t actually know squat about it until I looked on Wikipedia and found it to be the second largest financial paper in the world.) The editorial dealt with my legal analysis of the gripping story of First Pooch Barney taking a bite out of Reuters reporter Jon Decker. Somehow, though, they missed Barney’s own account of the incident.

And so as I close out my second year of blogging, I would like to welcome all those readers from India who have an interest in New York personal injury law. Both of you. And don’t forget to add me to your RSS feed.

Barney Speaks Out (An Interview with the First Pooch)

As readers know, presidential pooch Barney took a bite out of Reuters’ reporter Jon Decker yesterday. The NYPILB caught up with the First Dog for this exclusive interview covering the incident, life in the White House, and the prospect of being sued:

NYPILB: Dog, what happened?

Barney: Please. It’s Barney. Save your familiarities. I’m still in the White House, you know. I’m not some common mutt on the street.

NYPLIB: My apologies. Barney, what happened?

Barney: You think it’s easy living in this prison? I snapped, OK?

NYPILB: Someone take away your doggie treats?

Barney: Oh sure, be a smartass. It’s bad enough that The Master has been walking around caged up in here because McCain didn’t want to see him and he’s grumpy because people don’t like him anymore. He says this place is worse than Gitmo. And I got these yahoos from the media crawling all over me with their cutchy, cutchy coo stuff like I’m a baby.

NYPILB: Don’t you have protection from them?

Barney: I did until yesterday. My Sheppards have been reassigned to the incoming puppy. They gave me a fist bump and were gone.

NYPILB: Incoming puppy?

Barney: Yeah, word is the new dog in town is already being trained.

NYPILB: How does that make you feel?

Barney: Like biting.

NYPILB: I heard you’ve done this before.

Barney: I need to keep myself amused. We get these tourists coming through the Rose Garden, traipsing on my turf. Don’t you humans have noses? I clearly marked it. You think Saddam was the only one to have active chemical weapons?

NYPILB: But he didn’t.

Barney: They should have sent me over. I could have sniffed them out.

NYPILB: Are you worried about being sued?

Barney: In order to serve me with the papers, they have to catch me first. I’m small, but I can move when I have to. And besides, it would be a frivolous suit!

NYPILB: But Dog, you’ve bitten before. You’ve got what lawyers call a “vicious propensity.”

Barney: What did I tell you about that? You think this is American Idol?

NYPILB: Sorry. Barney, you’ve bitten before.

Barney: Would it be OK if I water boarded them instead? And besides, I thought they were terrorists.

NYPILB: In the Rose Garden?

Barney: 9/11!!!

NYPILB: Huh?

Barney: Rudy Giuliani likes to visit me. He said that was a defense to everything.

NYPILB: And where is Rudy now? Preparing his inaugural address, is he?

Barney: Again with the sass mouth. Look, the guy was coming after me. He bent down and made a grab. Am I supposed to let every Tom, Dick and Harry stroke my fur? I don’t think so! A dog’s gotta defend himself. By now the whole world’s seen the video. He’s 6 feet tall, I’m 1′-4″ on a good day. How can I reach his hand unless he’s coming down after me?

NYPILB: Barney, first you said you bit Decker because you snapped. Then you said you bite to amuse yourself. Then terrorists and now self defense. What gives?

Barney: I have a constitutional right to self-defense!

NYPILB: Where does the constitution say that?

Barney: The Second Amendment.

NYPILB: That deals with arms. We’re talking teeth.

Barney: Yeah, that’s what you think. In District of Columbia v. Heller Justice Scalia wrote that “The inherent right of self-defense has been central to the Second Amendment right.” Woof!

NYPILB: I didn’t know you were a constitutional scholar. Does it trouble you that they just made that “inherent right” stuff up, and that it isn’t part of the text?

Barney: You new to politics? Folks make stuff up all the time.

NYPILB: I notice that you didn’t answer the question about the multiple and contradictory defenses that you have raised.

Barney: Well, I have a book in progress. Millie cashed in, so why can’t I? My agent at William Morris is already working on the talk show and college campus circuits. I need to try out some lines to see what works.

NYPILB: Aren’t you afraid folks will see these conflicting things in print?

Barney: Nah. Your audience is too small. OK, I gotta go. Literally. I suggest you get out of my way.

Bush Dog Bites White House Reporter (Can Bush Be Sued?)

Barney bit someone. Not Barney the purple dinosaur. Barney the White House dog, a Scottish terrier. The victim was Reuters reporter Jon Decker, who must now live down the fact that he was even covering the pooch to begin with. He received medical attention and antibiotics from the White House doctor because the skin was broken.

But let’s leave aside the cute comments about Barney being upset by the election, lame duck dogs and Carl Rove as dog trainer, and cut to the real issue: Can Decker sue President Bush for the dog bite? Each state has different rules.

In New York, as it happens, our highest court dealt with the subject this year in Bernstein v Penny Whistle Toys, Inc. The bite took place, not at a home where these things usually happen but, in a store. The eight year old plaintiff had stopped to pet, hug and kiss Scooter, a Labrador mix, and he bit her on the cheek. She took 40-50 stitches on the outside. Scooter — no relation to convicted Cheney aide Libby — had no prior history of growling, jumping, biting or otherwise abusing people in the past.

Now the rule has been for almost 200 years, according to the majority opinion of the lower appellate court, that in order for a victim to recover from an animal’s owner, s/he must show that the dog’s owner knew or should have known of the dog’s “vicious propensities.” If the victim could prove this, then strict liability applied to the dog’s owner.

But the circumstance of this happening in a store raised a novel issue for the appellate court below that resulted in a split decision. It wasn’t a matter of dog ownership, but the responsibilities of an owner of a business to keep it safe for customers. The dissent argued that a plaintiff might prevail under a premises liability theory using general negligence as to the store owner instead of strict liability that applies to dog owners. In colorful writing, Justice Saxe wrote of the foreseeability of such an incident:

Defendants … own and operate a business, the primary purpose of which is to sell its wares to and for children. It is necessarily their goal to attract children into the store as customers. It may be assumed that, especially in the summertime, many of those young customers will arrive in the store holding or eating ice cream, custard, or other sweets or foods. Similarly, it is quite likely that a dog, otherwise perfectly friendly and well behaved, might experience an instinct to sniff out and attempt to obtain and consume a morsel of food or something sweet that was placed in close proximity.

The Court of Appeals rejected the reasoning of that dissent, and summary judgment was granted for the store owner. The rule that an owner must have notice of the vicious propensities — also known as the “every dog gets one bite” rule– remains in effect.

So is Barney a dangerous dog that has bitten or threatened before? Yes, in fact, he has, which may come as no surprise to Bush bashers. President Bush owns a dog with known vicious propensities — he has bitten White House visitors before according to this ABC News story:

On West Wing White House tours, visitors are not permitted in the Rose Garden if Barney is outside because he has bitten visitors in the past.

If this happened in New York, therefore, Bush would no doubt be in deep doo-doo for injuries Barney inflicts.

Of course, this happened at the White House. So we turn to D.C. doggie law, albeit only quickly since, well, the guy wasn’t bitten too badly and he’s probably more embarrassed than anything else. So there’s only so far I’m going to go with this. But here goes…

In Washington D.C. our humiliated Reuters reporter also has a case. Because, according to D.C. Code section 8-1808:

“[n]o person who has control or custody of a dog shall, direct, encourage, cause, allow or otherwise aid or assist that dog to threaten, charge, bite, or attack a person or other animal…”

This apparently brings on the presumption of negligence against the dog handler, assuming the accuracy of this website. In this case that means a White House staffer. (Whether suit would be against the government under the Federal Tort Claims Act for employing the negligent dog handler, or against Bush personally for owning the vicious dog, is an interesting question, but one for another day.)

It’s also worth noting that, because the dog has bitten before and wasn’t muzzled, that things look pretty good for our reporter as plaintiff. Though I’m guessing he would have preferred not to be bitten to begin with.

But there seems to be one other little catch to our proposed lawsuit. In Washington D.C., if a victim is even one percent responsible for the injury, s/he apparently can’t recover. Was the reporter at least one percent responsible for bending down and petting Barney?

For that we return to the story from ABC News that notes that reporter Decker first asked the dog handler if he could pet Barney, and did so only after getting the go-ahead. Given that the dog had known “vicious propensities,” as lawyers like to say, that was a pretty big no-no.

So, it seems, our reporter has a case. For small claims court. Very, very small claims court.
———————

Update, since I know you are all dying for more on this breaking story:

  • One Free (Presidential) Bite Rule: Bush’s Dog Barney Bites Reporter (Jonathan Turley):
    The Scottish terrier bit Reuters reporter Jonathan Decker in a dream of any personal injury lawyer: a well photographed, unprovoked attack. The greatest danger to Decker was being crushed by the hundreds of lawyers on nearby K St, rushing to give him their business cards.

  • Barney Bush: “I’ll Take Off His Ear Next” (Comedy Central)
    “Yeah, that’s right, I drew blood,” said Barney, interviewed after the “accident.” “Look, I’m eight years old. You do the math. You know what I’m saying? I’m on the Zoloft to keep from killing y’all!”